Citation Nr: 1004396
Decision Date: 01/29/10 Archive Date: 02/16/10
DOCKET NO. 06-04 867 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUES
1. Entitlement to an initial evaluation in excess of 20
percent for cervical disc disease.
2. Entitlement to an initial evaluation in excess of 10
percent for lumbar disc disease with arthritis.
3. Entitlement to an initial evaluation in excess of 10
percent for gastroesophageal reflux disease (GERD) with
chest pain.
4. Entitlement to an initial evaluation in excess of 10
percent for asthma.
5. Entitlement to an initial compensable evaluation for
sinusitis and allergic rhinitis.
6. Entitlement to an initial compensable evaluation for
bilateral hearing loss.
7. Entitlement to service connection for an acquired
psychiatric disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Thomas A. Pluta, Counsel
INTRODUCTION
The Veteran had active duty service from June 1979 to
December 2002.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a March 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Wichita, Kansas. That decision granted service connection
and assigned a 20 percent disability evaluation for cervical
disc disease; a 10 percent disability evaluation for lumbar
disc disease with arthritis; a 10 percent disability
evaluation for GERD; a 10 percent disability evaluation for
asthma; a noncompensable evaluation for asthma; a
noncompensable evaluation for sinusitis; a noncompensable
evaluation for allergic rhinitis; and, a noncompensable
evaluation for bilateral hearing loss. The grant of service
connection and the assignment of the disability evaluations
are effective from December 2, 2002. The March 2004 rating
decision also denied service connection for an acquired
psychiatric disorder. The Veteran appealed that decision to
BVA, and the case was referred to the Board for appellate
review.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Reasons for Remand: To afford the Veteran more recent VA
examinations, to search for in-service psychiatric or mental
health records, and to obtain additional treatment records.
The law provides that VA shall make reasonable efforts to
notify a claimant of the evidence necessary to substantiate
a claim and requires VA to assist a claimant in obtaining
that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38
C.F.R. § 3.159 (2009). Such assistance includes providing
the claimant a medical examination or obtaining a medical
opinion when such an examination or opinion is necessary to
make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West
2002); 38 C.F.R. § 3.159 (2009).
The Veteran was afforded VA examinations in January 2004 in
connection with his claims for service connection for
cervical disc disease, lumbar disc disease with arthritis,
GERD, asthma, sinusitis and allergic rhinitis, and bilateral
hearing loss. Following the grant of service connection for
those disabilities in the March 2004 rating decision, he was
not provided any further examination. As such, it has been
six years since his last examinations. In fact, the
Veteran's representative submitted a written brief
presentation in November 2009 contending that these service-
connected disabilities had worsened since the January 2004
VA examinations and specifically requested contemporaneous
medical examinations to determine the current severity of
the disorders. Generally, when a claimant asserts that the
severity of a disability has increased since the most recent
rating examination, an additional examination is
appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also
Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown,
6 Vet. App. 377 (1994).
Moreover, during the pendency of the appeal, the
Compensation and Pension (C&P) hearing examination
worksheets were revised to include a discussion of the
effect of the Veteran's hearing loss disability on
occupational functioning and daily activities. See Revised
Disability Examination Worksheets, Fast Letter 07-10 (Dep't
of Veterans Affairs Veterans, Apr. 24, 2007); see also 38
C.F.R. § 4.10 (2009). In Martinak v. Nicholson, 21 Vet.
App. 447 (2007) the United States Court of Appeals for
Veterans Claims (Court) held that in addition to dictating
objective test results, a VA audiologist must fully describe
the functional effects caused by a hearing disability in his
or her final report. Although the January 2004 VA examiner
provided audiometric test results, he did not specifically
comment on the functional effects caused by the Veteran's
bilateral hearing loss.
Based on the foregoing, the Board finds that more recent VA
examinations are necessary to assess the current severity
and manifestations of the Veteran's service-connected
cervical disc disease, lumbar disc disease with arthritis,
GERD, asthma, sinusitis and allergic rhinitis, and bilateral
hearing loss.
In addition, the Veteran told the January 2004 VA mental
health examiner that he sought mental health treatment
during his military service. In this regard, he indicated
that he saw someone in Panama between 1983 and 1986 and at
Fort Riley Irwin Army Hospital between 1993 and 1999. The
Veteran's service treatment records have been obtained and
associated with the claims file. However, based upon a
review of the documents assembled for appellate review, the
Board finds that it is unclear as to whether the search for
service records included clinical records from a mental
health clinic. Thus, additional efforts should be undertaken
to attempt to obtain any additional service-related records.
Lastly, the Board notes that there may be additional
treatment records not associated with the claims file. In
this regard, the Board notes that the claims file does not
contain any treatment records dated after November 2005
other than a March 2006 letter from a private physician.
Such records may prove to be relevant and probative.
Therefore, as this case is already being remanded for the
further development, the RO should take the opportunity to
obtain and associate with the claims file any and all
treatment records pertaining to the disabilities on appeal.
Therefore, in order to give the appellant every
consideration with respect to the present appeal and to
ensure due process, it is the Board's opinion that further
development of the case is necessary. Accordingly, the case
is REMANDED for the following actions:
1. The RO should contact the National
Personnel Records Center (NPRC), or
other appropriate location, to make a
specific request for service medical
inpatient and outpatient psychiatric or
mental health records of the Veteran and
through any other appropriate records
repository to which pertinent clinical
records may have been sent.
Specifically, it should be ascertained
whether mental health records may be
stored somewhere other than with the
service treatment records. These
efforts should include requesting
clinical records documenting the
treatment in Panama between 1983 and
1986 and at Fort Riley Irwin Army
Hospital between 1993 and 1999.
As set forth in 38 U.S.C.A. §5103A(b)(3)
and 38 C.F.R. §3.159(c)(2), the RO
should continue efforts to locate such
records until it is reasonably certain
that such records do not exist or that
further efforts to obtain those records
would be futile. The Veteran should be
notified of the RO's attempts to locate
his military medical records as well as
any further action to be taken.
2. The RO should request that the
Veteran provide the names and addresses
of any and all health care providers who
have provided treatment for the
disabilities currently on appeal. After
acquiring this information and obtaining
any necessary authorization, the RO
should obtain and associate these
records with the claims file. A
specific request should be made for
medical records dated from November 2005
to the present.
3. The Veteran should be afforded VA
examinations to ascertain the current
severity and manifestations of his
service-connected cervical disc disease,
lumbar disc disease with arthritis,
GERD, asthma, sinusitis and allergic
rhinitis, and bilateral hearing loss.
Any and all studies, tests, and
evaluations deemed necessary by the
examiner should be performed. The
examiner is requested to review all
pertinent records associated with the
claims file and to comment on the
severity of the Veteran's service-
connected disabilities. The examiner
should report all signs and symptoms
necessary for rating the Veteran's
disabilities under the rating criteria.
In regards to the Veteran's cervical
spine and lumbar spine disabilities, the
examiner should provide the range of
motion of both segments of the spine in
degrees and indicate whether there is
any form of ankylosis. The examiner
should also indicate whether the Veteran
has muscle spasm or guarding severe
enough to result in an abnormal gait or
abnormal spinal contour such as
scoliosis, reversed lordosis, or
abnormal kyphosis. The examiner should
further state the total duration of
incapacitating episodes during the
previous 12 months. The presence of
objective evidence of pain, excess
fatigability, incoordination, and
weakness should also be noted, as should
any additional disability due to these
factors.
With respect to GERD, the examiner
should state whether the Veteran has
recurrent epigastric distress;
dysphagia; pyrosis; regurgitation;
substernal, arm, or shoulder pain;
vomiting; material weight loss;
hematemesis; melena; or, anemia. He or
she should also comment as to whether
the Veteran has considerable or severe
impairment of health.
Regarding the asthma, the examiner
should provide the FEV-1 percent
predicted, the FEV-1/FVC, the DLCO (SB)
percent predicted, and the maximum
oxygen consumption.
In regards to the sinusitis and allergic
rhinitis, the examiner should indicate
whether the Veteran has polyps, a
greater than 50 percent obstruction of
nasal passage on both sides, or complete
obstruction on one side. He or she
should also state the total number of
incapacitating episodes of sinusitis per
year requiring prolonged antibiotic
treatment (lasting four to six weeks) or
characterized by headaches, pain, and
purulent discharge and crusting.
With respect to bilateral hearing loss,
the Maryland CNC test and a puretone
audiometry test should be performed.
The examiner should also comment on the
effect of the Veteran's bilateral
hearing loss on his occupational
functioning and daily activities.
A clear rationale for all opinions would
be helpful and a discussion of the facts
and medical principles involved would be
of considerable assistance to the Board.
Since it is important "that each
disability be viewed in relation to its
history [,]" 38 C.F.R. § 4.1 (2009),
copies of all pertinent records in the
appellant's claims file, or in the
alternative, the claims file, must be
made available to the examiner for
review.
4. After completing the above actions,
the RO should conduct any other
development as may be indicated as a
consequence of the action taken in the
preceding paragraphs. Further
development may include affording the
Veteran a VA examination in connection
with his claim for service connection
for an acquired psychiatric disorder.
When the development requested has been completed, the case
should be reviewed by the RO on the basis of additional
evidence. If the benefit sought is not granted, the Veteran
and his representative should be furnished a Supplemental
Statement of the Case and be afforded a reasonable
opportunity to respond before the record is returned to the
Board for further review.
The purpose of this REMAND is to obtain additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time. The appellant has the right to submit
additional evidence and/or argument on the matter or matters
the Board has remanded to the regional office. Kutscherousky
v. West, 12 Vet. App. 369 (1999). No action is required of
the appellant until he is notified.
These claims must be afforded expeditious treatment. The
law requires that all claims that are remanded by the Board
or the Court for additional development or other appropriate
action must be handled in an expeditious manner. See
38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
________________________________________________
JESSICA J. WILLS
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of the appeal.
38 C.F.R. § 20.1100(b) (2009).